IVEY, TONY L., PEOPLE v ( 2012 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    857
    KA 07-00321
    PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    TONY L. IVEY, DEFENDANT-APPELLANT.
    GANGULY BROTHERS, PLLC, ROCHESTER (ANJAN K. GANGULY OF COUNSEL), FOR
    DEFENDANT-APPELLANT.
    SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Monroe County Court (John J.
    Connell, J.), rendered April 24, 2003. The judgment convicted
    defendant, upon his plea of guilty, of assault in the second degree.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed.
    Memorandum: Defendant appeals from a judgment convicting him
    upon his plea of guilty of assault in the second degree (Penal Law §
    120.05 [2]). We reject defendant’s contention that his conviction
    must be vacated because County Court failed to inform him of the
    length of the period of postrelease supervision. It is well settled
    that a defendant “ ‘must be aware of the postrelease supervision
    component of [his or her] sentence in order to knowingly, voluntarily
    and intelligently choose among alternative courses of action’ ”
    (People v Louree, 8 NY3d 541, 545, quoting People v Catu, 4 NY3d 242,
    245). Here, the prosecutor informed defendant immediately prior to
    the plea colloquy that the period of postrelease supervision in the
    plea agreement was five years, and the court then explained to
    defendant that postrelease supervision was a mandatory component of
    his sentence. Thus, at the time defendant entered his plea, he was
    aware that a period of five years of postrelease supervision would be
    a part of his sentence (cf. People v Cornell, 75 AD3d 1157, 1158-1159,
    affd 16 NY3d 801; People v Pett, 77 AD3d 1281, 1281-1282).
    Contrary to defendant’s further contentions, we conclude that the
    court engaged in adequate fact-finding procedures in denying
    defendant’s motion to withdraw his guilty plea and did not err in
    failing to conduct an evidentiary hearing on the motion. The record
    establishes that, during oral argument of the motion, the court
    afforded defendant “the requisite ‘reasonable opportunity to present
    his contentions’ in support of [the] motion” (People v Strasser, 83
    -2-                           857
    KA 07-00321
    AD3d 1411, 1411, quoting People v Tinsley, 35 NY2d 926, 927; see
    People v Buske, 87 AD3d 1354, 1355, lv denied 18 NY3d 882; People v
    Harris, 63 AD3d 1653, 1653). Additionally, the court “did not abuse
    its discretion in denying defendant’s motion to withdraw the plea on
    the ground of coercion without conducting a hearing inasmuch as the
    record is devoid of ‘a genuine question of fact as to the plea’s
    voluntariness’ ” (People v Campbell, 62 AD3d 1265, 1266, lv denied 13
    NY3d 795). Indeed, defendant’s contention that his plea was coerced
    is belied by his statement during the plea colloquy that he had not
    been forced to plead guilty (see People v Williams, 90 AD3d 1546,
    1547; People v Wolf, 88 AD3d 1266, 1267, lv denied 18 NY3d 863). In
    addition, defendant alleged, inter alia, that the prosecutor
    threatened defendant’s wife and sister-in-law with incarceration if
    they did not testify, thereby forcing him to plead guilty. We note,
    however, that the prosecutor specifically denied threatening any
    witnesses, and defense counsel did not challenge the prosecutor’s
    statement. Defendant’s reliance on People v Wheaton (45 NY2d 769,
    770-771) is misplaced inasmuch as the prosecutor herein effectively
    controverted defendant’s allegations.
    Finally, we note that the certificate of conviction incorrectly
    reflects that defendant was convicted of assault in the first degree,
    and it must therefore be amended to reflect that he was convicted of
    assault in the second degree (see People v Saxton, 32 AD3d 1286, 1286-
    1287).
    Entered:   September 28, 2012                  Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 07-00321

Filed Date: 9/28/2012

Precedential Status: Precedential

Modified Date: 10/8/2016